U.S. District Judge Martin Feldman had tried to avoid tipping his hand. Presiding over June’s high-profile hearing on whether to uphold Louisiana’s same-sex marriage ban, Feldman pounced on the first mention of Antonin Scalia, his friend on the U.S. Supreme Court and a fellow strict constructionist.
“I was wondering how long” that would take, Feldman told James Dalton Courson, who represented the couples who’d legally wed elsewhere and wanted their home state to acknowledge that reality, and who attempted to cite one of the justice’s opinions. Later in the hearing, the judge noted that he’d also mentored one of Scalia’s liberal colleagues, Sonia Sotomayor.
But it was Feldman’s reaction to hearing another name that revealed his thinking on the case. When Courson brought up the landmark Loving case, in which the high court declared state laws forbidding interracial marriage unconstitutional, the judge again interjected.
“Loving won’t do you any good,” he said, asserting that the Constitution explicitly forbids discrimination based on race but not sexual orientation. Sure enough, Feldman last week upheld the ban, becoming the only judge at his level to do so and interrupting a stunning winning streak for gay rights advocates. In essence, Feldman ruled that the Constitution’s guarantees of equal protection and due process for all do not trump states’ rights.
Which brings me to a fourth name hovering over the proceedings: Richard Posner.
Those who disagree with Feldman’s logic can poke plenty of holes in his justification for denying recognition and legal rights to these couples, in accordance with a state constitutional amendment adopted by popular vote an eventful decade ago.
There’s his bizarrely outdated contention that the state has a legitimate policy interest in “linking children to an intact family formed by their two biological parents,” which suggests that other sorts of families, even those formed by opposite-sex parents and adopted children, are legally inferior and should be subject to referendum. Then there’s his suggestion that allowing same-sex marriage would create a slippery slope for other types of now-banned unions, including among close family members; in fact, each prohibition creates a unique public policy question and should be considered on its own.
But it was Posner, a fellow Reagan-appointed judge, who indirectly destroyed Feldman’s arguments in his own opinion for the 7th Circuit Court of Appeals upholding challenges to gay marriage bans in Indiana and Wisconsin, a decision that happened to come out the very next day.
Where Feldman didn’t even wait until after the hearing to essentially reject the equal protection claim, Posner argued that it goes to the very heart of the matter.
Where Feldman glancingly referred to homosexuality as a lifestyle choice — albeit one that’s “personal, genuine and sincere” — Posner dove deep into academic consensus that it’s an immutable characteristic, more like skin color than, say, length of fingernails.
Where Feldman zeroed in on the objective of linking children to biological parents, Posner made mincemeat of that narrow approach. He noted the hypocrisy of Indiana’s law that allows first cousins to marry only once they’ve passed child-bearing age, which obviously suggests a broader interpretation of the benefits of marriage. He argued that children of same-sex couples benefit from the stability and societal legitimacy that comes with having married parents. He delved into the long list of government benefits that come with marriage — survivor benefits, for example — that have nothing to do with Feldman’s stated goal.
Posner spent far less time on the democracy argument than Feldman did because he found the equal protection argument so compelling. Even at the relatively low level of scrutiny that Feldman applied, he wrote, state bans are “irrational.”
And where Feldman asserted respect for the wishes of gay couples even as he argued that resistance is not necessarily the product of bias, Posner fervently disagreed. He focused on a history of discrimination against gay people in American society, arguing that they’re among the most “misunderstood, and discriminated-against minorities in the history of the world.” He also rejected the theory that resistance is more about tradition than distaste. Traditions, he wrote, can be good, bad or value-neutral, but their very existence do not a legal argument make.
In fact, in explicitly acknowledging the way society has looked on gay people for much of American history, Posner made a direct connection to the Loving case, the very same one that Feldman found irrelevant to the discussion.
Reading the two opinions side by side, you can almost imagine a debate between the two scholarly jurists. Each would would make the strongest, most rigorous case possible for his side.
And there’s really no question who’d win.